Sections

Sections

Canada

Andrew Coyne: We now know Wilson-Raybould was pressured. They just didn't call it that

Andrew Coyne

Published: February 21, 2019 - 6:49 PM

Updated: February 22, 2019 - 10:09 AM

First she was not directed. Then she was not pressured. Now, courtesy of the clerk of the privy council, we learn she was not “inappropriately” pressured. The progression is familiar: when you cannot deny a thing is true, deny that it matters.

As we have been discovering in recent days, in fact all sorts of pressure was applied to the former attorney general, Jody Wilson-Raybould — by the prime minister, by his officials, by the clerk — to politicize the prosecution of SNC-Lavalin. They just didn’t call it that, at least until now.

Leave aside the legal and ethical considerations. I’m just interested in how they thought this would work. Suppose she had bowed to the “appropriate pressure” of the prime minister and his people and ordered the director of public prosecutions to drop all charges against SNC-Lavalin and negotiate a remediation agreement in their place.

What would she, and they, have done when the DPP informed her this was not lawful, as the company had not met the conditions the law requires for her to enter such negotiations, having neither voluntarily disclosed its alleged wrongdoing, nor admitted corporate responsibility for it, nor made reparations to the people it had allegedly defrauded?

Or when the DPP pointed out that the professed reason for SNC-Lavalin to be granted such leniency, the jobs that would allegedly be lost in Quebec, is expressly precluded by the same law? Or when she resigned rather than carry out an order she considered unlawful?

Did they not think this would cause something of, I don’t know, a stir? Did anyone think this through?

Suppose the DPP had not resigned, accepting instead this unprecedented assault on her prosecutorial independence, not to say her professional judgement. How was she supposed to negotiate a remediation agreement, if the endpoint – that SNC-Lavalin was to be let off on all charges — had already been decided? What bargaining leverage would she have?

And how would anyone in government have explained all this when, as the attorney general is legally obliged to do whenever she gives instructions to the DPP regarding the “initiation or conduct” of a prosecution (assuming this even applies to the present situation), she made the order public?

What reasons was she supposed to give? “I am overturning the prosecutor’s decision to proceed with charges of fraud and corruption against SNC-Lavalin because it will cost jobs in a province where we need to win seats, in an election year?” Did they not think this would cause something of, I don’t know, a stir? Did anyone think this through?

Or never mind the public, or the prosecutor: how did they think they were going to explain it to a judge, whose consent is also legally required for any remediation agreement?

But then it hit me. The answer, surely, is for the attorney general to talk to the judge. Or maybe the prime minister should, or one of his people. Not to direct him, of course: that would be wrong. But just to explain the context, if you will.

Surely we are not going to allow them to be sacrificed on the altar of a narrow and dogmatic interpretation of what is, let us remember, a mere convention?

The policy objective, after all, is to spare SNC-Lavalin from being convicted of a crime, owing to the serious distruption to its business model that would result if, merely because it had a history of bribing people to win public contracts, it were to be prevented from bidding on public contracts. Does it really matter, in pursuit of that overriding objective, whose independence has to take a hit: prosecutorial or judicial?

I realize this suggestion will shock some people. Probably the same people were shocked when the allegation first surfaced that the prime minister’s people had tried to get the attorney general to interfere in the prosecution of a company that had given hundreds of thousands of dollars, legally and illegally, to the Liberal Party.

But over time, the mind adjusts. Subtler voices came to the fore, explaining why the pressure the prime minister’s officials were at that time still denying was in fact entirely proper, an elegant and sophisticated solution to a difficult problem. Why shouldn’t a government elected with the support of 38 per cent of the people be able to have the prosecutorial decision it desires, and be accountable for it? Why, it would be an affront to democratic accountability not to permit it.

There are jobs at stake, after all, thousands of them, many in swing ridings. Surely we are not going to allow them to be sacrificed on the altar of a narrow and dogmatic interpretation of what is, let us remember, a mere convention? An important one, of course, don’t get me wrong. But surely we do not have to be such absolutists about it. Do we really want to bar politicians from talking to one another? Or from making representations to public officials on a matter of public interest?

And if that logic justifies infringing upon the independence of the attorney general, and through her that of the director of public prosecutions, why should it not also extend to the judge? A company’s life is at stake. Now is not the time to get hung up on niceties like which officer of a court a prime minister can or cannot call.

Is there a “taboo” on politicians attempting to influence judges? There was once a taboo on prime ministers interfering with prosecutions, too. But the minute you start thinking about it — provided you do not think too much longer than that — it goes away. Whether the charges are dropped by the prosecutor, or thrown out by the judge, it’s all the same. The point is that they should not result in a conviction.

Or perhaps the government could simply amend the law to eliminate the requirement for a judge’s consent. For that matter, it could remove the provision excluding economic impact as a factor in the prosecutor’s judgment. Or it could overturn the ban on companies convicted of bribery and other crimes bidding on federal contracts.

If it was possible to draft a whole new law to help SNC-Lavalin get off on criminal charges, even after those charges had been laid — and, when the prosecutor refused to comply, to overrule the prosecutor — it is surely possible to make whatever changes to the law the company might need. No doubt it has a few suggestions.